"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion....[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." Justice Hugo Black, Bridges v. California (1951)

Monday, March 24, 2014

A Wayne County judge has recommended that the Indiana Supreme Court
publicly reprimand — but not suspend from the practice of law— local
attorney Michael J. Alexander.

Wayne
Superior Court 3 Judge Darren Dolehanty — appointed hearing officer
after a disciplinary complaint was filed against Alexander in January
2013 — issued his findings and recommendations to the state Supreme
Court on Friday.

Dolehanty
noted that the alleged misconduct — which Alexander largely admitted to
at a Feb. 28 hearing — “happened several years ago,” adding that he had
no reason to believe the Muncie attorney had committed additional rule
violations in the years since.

...

The January 2013 complaint signed by Executive Director Michael Witte, accuses Alexander of in 2005 employing Bruce McLaren, an attorney who resigned from his position rather than face discipline from a 2003 conviction in federal court for which he served five years in prison.

The major thrust of the complaint though had to do with the Alexander's conduct during a 2003 personal injury case against Outback for allegedly serving a drunk customer who then hit Alexander's clients who were traveling on a motorcycle. The patron had actually gone to another bar after being at Outback celebrating that restaurant's grand opening.

The key witness was an Outback employee who when deposed said that the customer was not visibly but later then changed her testimony after meeting with Alexander. Alexander did not inform Outback's attorneys of the meeting with the employee or the changed testimony. In 2003, Alexander's client won the jury trial but in 2006 the Indiana Supreme Court overturned the decision, pointing to Alexander's misconduct. In an opinion written by Justice Theodore Boehm, the Court suggested that Alexander had committed disciplinary violations and recommended that the Disciplinary Commission take up the matter:

Notwithstanding our conclusion that Alexander's conduct is not grounds for relief from a judgment under Trial Rule
60(B), we conclude that his conduct warrants investigation by the
Indiana Disciplinary Commission. Rule 3.3(a)(1) of the Indiana Rules of
Professional Conduct provides that an attorney "shall not knowingly make
a false statement of fact or law to a tribunal." The commentary
explains that candor is necessary to preserve the integrity of the
adjudicative process. Rule 4.1(a) provides that an attorney shall not
"knowingly make a false statement of material fact or law to a third
person" in the course of representing a client. The commentary to this
Rule explains that misrepresentations include "partially true but
misleading statements." Rule 8.4(d) provides that it is also misconduct
for an attorney to engage in conduct "prejudicial to the administration
of justice." We leave to the Disciplinary Committee to consider whether
these facts are as they appear from this record and if so whether any
charges are appropriate.

(Note: It is not clear why Justice Boehm says that Alexander's conduct is not grounds for relief from judgment because in the next paragraph the Court concludes otherwise, reversing the trial court's failure to grant the motion asking for relief from judgment, vacating the judgement and ordering a new trial.)

Despite Justice Boehm's opinion suggesting referral to the Disciplinary Commission in 2006, it was not until January 2013 that the Commission charged Alexander with misconduct. The disciplinary complaint focused on statements made by Alexander during closing argument and his failure to update discovery, and his failure to reveal prior conversations with the aforementioned key witness.

The passage of time points to a need for the Indiana Supreme Court to adopt statutes of limitations when it comes to pursuing disciplinary grievances and formal charges. By the time the disciplinary complaint was filed against Alexander, the facts supporting misconduct were between 10 and 14 years old. It is unfair to an attorney to have to defend against facts that are that old. On the other hand, if Alexander did commit substantial misconduct, the passage of time in the eyes of the Hearing Officer, and quite likely the Supreme Court, means a less severe punishment - public reprimand - is appropriate. The Commission should not be able to decrease the penalty on an attorney for misconduct by sitting on potential charges.

Benjamin C. Weiner was president and legal counsel for a Great Western Mineral and Mining, Inc. (GW) which was a plaintiff in a legal malpractice case. Weiner had hired an attorney named James Wiley to represent GW in the litigation. The parties agreed to arbitration in front of a Pennsylvania attorney named Thomas Rutter. The mining company lost the arbitration. Later the arbitration decision was challenged in the Pennsylvania courts as being invalid because Rutter had not disclosed a conflict of interest he had. The mining company lost that appeal and was likewise unsuccessful due to collateral estoppel, in a new lawsuit alleging tort and breach of conflict based on Rutter's conflict of interest.

Wiley conveyed to him a conversation he had with an opposing counsel in which that counsel stated that there was no way that a Philadelphia court or a state (appellate) court would decided against Thomas Rutter given his relationship with those courts, namely that as head of the largest alternative dispute resolution firm in Pennsylvania he was in a position to offer lucrative jobs to judges who want to leave the bench.

Weiner later initiated an action in the United States District Court for New Jersey claiming that he had been denied his due process rights. He alleged that the Pennsylvania courts were beholden to certain of the defendants, including Rutter, and that the decisions of those courts were the result of a corrupt conspiracy.

Weiner was charged with a Rule 8.2 violation for his federal court filings. What is most noteworthy about the case is that at the evidentiary hearing before the District VC Ethics Committee (DEC), the Disciplinary Oversight Committee (the body that prosecutes disciplinary matters in New Jersey) did not even bother to call a single witnesses even thought it had the burden of proof of showing that Weiner had made a false statement in violation of Rule 8.2. Rather, the statements were just presumed to be false with the burden of proof on Weiner to prove they were instead true.

Weiner gave it a try though, asking to subpoena 45 witnesses, including 34 active and retired Pennsylvania judges. All of Weiner's subpoena requests were denied. The other evidence he introduced to try to show a corrupt Pennsylvania judiciary was ridiculed as being irrelevant.

(I wrote earlier that Pennsylvania is the same state that produced the infamous "Kids for Cash" scandal in which Luzerne County judges were sentencing kids to private juvenile facilities in exchange for kickbacks. A Commission later formed to study why the scandal happened criticized attorneys for knowing about the corrupt judges but failing to speak out. My review of Pennsylvania Rule 8.2 cases showed that prior to the scandal breaking, three Pennsylvania attorneys had been accused of disciplinary violations for accusing judges of misconduct, with two suspended for five years and one disbarred. Those cases undoubtedly had a chilling effect on attorney's willingness to accuse judges of wrongdoing and, as a result, the public was harmed.)

Weiner also argued that the First Amendment protected his speech. The Disciplinary Review Board, the arm of the New Jersey Supreme Court which reviews the DEC's findings of fact and issues a judgment that appears to be nothing more than rubber-stamped by the New Jersey Supreme Court, simply ignored the First Amendment argument. Likewise, the Board apparently did not understand or seem to care about the difference between the statement of a fact and the expression of an opinion, the latter of which was never intended to be covered by Rule 8.2. Further, the Board simply ignored that the express purpose of Rule 8.2 is to protect "public confidence in the administration of justice," which was hardly threatened by Weiner's court filings that only a handful of people would have ever read. Indeed it was the Disciplinary Oversight Board that made Weiner's criticism of the Pennsylvania judiciary much more public by filing the charges.

The Disciplinary Review Board found Weiner's "accusations against the Panels' members and resistance to the process were uncalled for as unprofessional and bordered on an independent ethics violations." Given the due process violations and the Board's ignoring the purpose of Rule 8.2 as well as the First Amendment arguments, Weiner had every right to complain about the process.

[Hunter's] magistrate ruled that custody of two children would be
transferred from their mother and given to the Department of Job &
Family Services. Hunter held a Nov. 12, 2012, hearing and said she would
rule in 60 days.

Instead, she waited so long to rule on the
custody case that the Hamilton County public defender asked the
Cincinnati-based 1st District Court of Appeals to force Hunter to rule
on that and more than a dozen other cases because the delays were
hurting the children involved.

Hunter eventually ruled, two days
after the appeals court ordered her to and 11 months after she held the
first hearing. Her ruling, though, blasted the mother's attorney for not
presenting a better defense. More importantly, Hunter admitted in that
decision that she did "not have time to rectify that shortcomings of
Mother's legal arguments."

Hunter had previously been suspended by the Ohio Supreme Court after she was indicted on criminal allegations of theft in the office for misusing county credit cards, backdating court documents, and improperly inserting herself into the firing of her brother, a former juvenile court employee.

As the Cincinnati Enquirer article notes: "The ruling is unusual because judges rarely criticize other judges' rulings, much less with such scathing language."

Ohio Appellate Judge Sylvia Hendon

And therein lies the irony. Ohio is the second most aggressive state (after Indiana) in disciplining attorneys for criticism of judges, with eight Rule 8.2 cases. Six of those Rule 8.2 cases have been handed down in the last 3 1/2 years. Of the eight Rule 8.2 cases, seven involved matters where the attorney put his accusation of judicial misconduct in court filings. One of those seven cases involved an attorney who was disciplined for filing disciplinary grievances accusing a judge for not following Ohio law with respect to the issuance of ex parte protective orders. That attorney was indefinitely suspended and won't be allowed to practice again in Ohio unless he can prove he is mentally healthy.

In employing the most strict "reasonable attorney" standard for enforcing Rule 8.2, the Ohio Supreme Court stated in the Pullins case "[w]e have recognized that ethical rules prohibiting false statements impugning
the integrity of judges are necessary 'to preserve public confidence
in the fairness and impartiality of our system of justice."" So then why wouldn't Judge Hendon's harsh statements about Judge Hunter also not cross that line? If anything, Judge Hendon's statements about Judge Hunter, which have been picked up by numerous media outlets, would have even more of an effect of undermining the public's confidence in the judiciary than Ohio attorneys including judicial criticism in filings that quite likely would never be picked up by a media outlet?

The answer is that Rule 8.2 is being enforced by the Ohio Supreme Court not to protect the public, but rather to protect their judicial colleagues from criticism.

Monday, March 10, 2014

In late February, the Maryland Court of Appeals (which is the highest court in Maryland) disbarred a long-time Maryland attorney, James Albert Frost, for alleging in emails that several Maryland judges had engaged in misconduct. The decision, Attorney Grievance Commission v. Frost, outlines the pertinent facts:

Respondent was admitted to the Maryland Bar on June 29,
1972. He does not maintain an office for the practice of law. On April
23, 2012, Respondent wrote an email to his ex-wife, stating, inter alia:

With regard to Case #110082-C, you know or should know that:
(1) Ann S. Harrington, a

James Albert Frost

lawless judge, arranged for deputy sheriffs of
the Montgomery County, MD, Sheriff's Office to illegally arrest me on
May 13, 2008, with no probable cause to do so and there by committed the
crime under State of Maryland law of making a false report to an agency
of the state with police powers; . . . (3) There was no basis in law or
in fact for Judge Stephen P. Johnson, a weak man and corrupt judge
acting under improper and political influence, to have me locked up in
the county jail on a "no bond" order for 87 days and 87 nights but
that's what was done; and (4) The crooked State's Attorney for
Montgomery County, MD, John J. McCarthy, Esq., a protégé of Douglas F.
Gansler, Esq., the corrupt Attorney General of Maryland, and a political
ally of Maryland Governor O'Malley, a pretty-boy hack politician,
didn't let his assistant prosecutors drop the phon[y] charge against me
until August 8, 2008.

With regard to Case #11041-C . . . you know or should know
that the Maryland State Police deceived District Court of Maryland
Commissioner Kaitlyn Boyle into signing a warrant to arrest me and then
deceived Circuit Court Judge Joseph A. Dugan, Jr., into signing a search
and seizure warrant by and through perjury on the warrant applications
signed on August 13, 2008, by Maryland State Trooper Michael Brennan,
who was ordered to do that by Maryland State Police Captain Clifford T.
Hughes, his supervisor, and Maryland State Police Superintendent Terence
B. Sheridan, who were acting under improper and political influence
exerted (through an intermediary) by Governor O'Malley and his wife,
Judge of the District Court of Maryland for Baltimore City Catherine
Curran O'Malley.

Respondent made the April 23, 2012 statements regarding the
Honorable Ann S. Harrington, specifically calling her a "lawless judge"
and accusing her of "arrang[ing] for deputy sheriffs of the Montgomery
County, MD Sheriff's Office to illegally arrest [him]" knowing the
statements to be false and with reckless disregard as to their truth or
falsity. Respondent has no facts to support the statements made
regarding Judge Harrington.

Respondent made the April 23, 2012 statements regarding the
Honorable Stephen P. Johnson, Retired Judge for the District Court of
Maryland for Montgomery County, specifically calling him "a weak man and
corrupt judge acting under improper and political influence . . ."
knowing the statements to be false and with reckless disregard as to
their truth or falsity. Respondent has no facts to support the statement
regarding Judge Johnson.

Respondent made the April 23, 2012 statement regarding John
J. McCarthy, State's Attorney for Montgomery County, specifically
calling Mr. McCarthy a "crooked" State's Attorney, knowing the statement
to be false and with reckless disregard as to its truth or falsity.
Respondent has no facts to support the statement regarding Mr. McCarthy.

Respondent made the April 23, 2012 statement regarding
Douglas F. Gansler, Attorney General of Maryland, specifically calling
Mr. Gansler "corrupt," knowing the statement to be false and with
reckless disregard as to its truth or falsity. Respondent has no facts
to support the statement regarding Mr. Gansler.

Respondent made the April 23, 2012 statement regarding
Governor O'Malley, specifically that he exerted "improper" influence
over members of the Montgomery County Police Department, knowing the
statement to be false and with reckless disregard as to its truth or
falsity. Respondent has no facts to support the statement regarding
Governor O'Malley.

Respondent made the April 23, 2012 statement regarding the
Honorable Catherine Curran O'Malley, Judge [for the] District Court of
Baltimore City, specifically that she exerted "improper" influence over
members of the Montgomery County Police Department, knowing the
statement to be false and with reckless disregard as to its truth or
falsity. Respondent has no facts to support the statement regarding
Judge Curran O'Malley.

On or about May 2, 2012, Respondent mailed a copy of the
April 23, 2012 email to George Meng, Esquire. Prior to May 2, 2012,
Respondent had no relationship or communication with Mr. Meng. On or
about May 2, 2012, Respondent forwarded a copy of the April 23, 2012
email to Paul Carlin, Esquire. On or about May 2, 2012, Respondent
forwarded a copy of the April 23, 2012 email to Katherine Kelly Howard,
Esquire.

On May 4, 2012, Mr. Meng emailed Respondent asking why the April 23, 2012 email was sent to him, directing him to Rule 8.2,
8.3 and 8.4 of the Maryland Lawyers' Rules of Professional Conduct and
requesting a response as how the April 23, 2012 email did not violate
Rules 8.2 and 8.4 and
did not require reporting to Petitioner pursuant to Rule 8.3. On May 10,
2012, no response having been received to his May 4 email, Mr. Meng
again emailed Respondent requesting a response to the questions posed on
May 4, 2012. On May 18, 2012, Respondent emailed Mr. Meng stating, "You
should have something from me in your mail Monday." On May 18, 2012,
Respondent mailed Mr. Meng a letter directed to Chief of Police J.
Thomas Manger, Montgomery County, Maryland. The May 18, 2012 letter did
not, in any way, respond to the questions posed by Mr. Meng in his
emails of May 4 and May 10. Mr. Meng received the May 18, 2012 letter on
May 21, 2012. On May 21, 2012, Mr. Meng emailed Respondent again
requesting a response to his May 4 and May 10 emails.

On May 23, 2012, no further communication having been
received from Respondent, Mr. Meng filed a complaint with the Petitioner
and enclosed: (1) Respondent's April 23, 2012 email, (2) Mr. Meng's May
4, 2012 email to Respondent, (3) Mr. Meng's May 10, 2012 email to
Respondent, (4) Mr. Meng's May 18, 2012 email to Respondent, (5)
Respondent's letter of May 1, 2012 to Chief of Police J. Thomas Manger,
and (6) Mr. Meng's May 21, 2012 email to Respondent.

Attorney George Meng was no ordinary member of the Maryland Bar. He was a long-time member of the Attorney Grievance Commission. Meng's complaint was forwarded to Frost by Bar Counsel. Frost responded:

"The statements of mine concerning which objections
have been presented to your office are protected from state action by
the free speech clause of the First Amendment to the United States
Constitution."

The next day, Frost followed up with a letter stating:

How did it happen, I wonder, that ten days after my e-mail
message of April 24 long-time A.G.C. of Maryland Commissioner George
Meng (to whom I had forwarded that e-mail on the subject perjury) sends
me an e-mail message (for the first time in his life) with the absurd
allegation that I'm in violation of Rule 8 of the Rules of Professional
Responsibility? No reasonably prudent individual would believe that you
and he and, most likely, some other people had not conferred with one
another about me and my truth-telling before on May 4th George undertook
his fruitless efforts to have me assume the role of attorney respondent
who offers an explanation/states some defense to a "complaint." How did
you as the Maryland Bar Counsel dare to get involved in this sort of
activity, Glenn? You should be ashamed of yourself.

Maryland's Bar Counsel asked for additional information from Frost who did not cooperate. Then Bar Counsel decided to prove the elements of the Frost charges by sending requests for admissions. Frost failed to respond. The Hearing Officer relied on the admissions to find Frost had violated Rule 8.2 in making reckless and untrue allegations about the judges. In reviewing the Hearing Officer's decision, the Court stated:

We agree with the hearing judge's conclusion that each of
Respondent's statements relate to the integrity and/or qualifications of
the named individuals, and that Respondent made the statements knowing
they were false or with reckless disregard as to their truth or falsity.
At the outset, we reject the hearing judge's conclusion that
Respondent's statement as to Governor O'Malley violates Rule 8.2(a),
because Governor O'Malley, the chief executive of the State of
Maryland, is not a "public legal officer" for the purposes of the Rule. The five remaining statements, however, involve judges or public legal officers, which fall under the purview of Rule 8.2(a).
We shall hold that by making those five statements, with the knowledge
that they were false or with reckless disregard for their truth or
falsity, Respondent violated Rule 8.2(a), and further that Respondent's statements are not entitled to protection under the First Amendment.

Moreover, these statements are, generally, the kind of statements that Rule 8.2(a)
is intended to prevent. Allegations of corruption tend to discredit the
public's trust and confidence in the judiciary and judicial system. Our
analysis of this case rests on Respondent's statements taken together
as a whole. For the sake of clarity, we note that certain phrases,
alone, may not necessarily rise to the level of an attack on a judicial
officer or public legal officer sufficient to warrant action pursuant to Rule 8.2(a). For
example, Respondent's use of the words "lawless" and "weak man," without
further allegations or criticisms, in another circumstance might not
constitute a violation of Rule 8.2(a).
Here, nevertheless, where those phrases were used in conjunction with
false factual allegations of corrupt activity, to include collusion with
law enforcement and "arrang[ing] for deputy sheriffs . . . to illegally
arrest [him]," Respondent is clearly in violation of Rule 8.2(a).

In its review, the Maryland Court of Appeals at least attempted to clarify that statements of opinion were not necessarily proscribed by Rule 8.2. Nonetheless, the Court's claim Frost's statements were factual in nature and not opinions is iffy at best. That someone believes that he was subject an an "illegal arrest" and public officials engaged in "collusion" most certainly could be classified as opinion. Simply calling those statements one of fact rather opinion, does not make it so.

Most notably though, by going after Frost's private comments made in an email, the Maryland Court of Appeals simply ignored the stated purpose of Rule 8.2 (outlined in Comment 1 to the rule) which is to prevent "false statements by a lawyer [that] unfairly undermine public confidence in the administration of justice." (It should be noted here that the Supreme Court in Gentile v. Nevada said that this narrow limitation on an attorney's free speech applies only to comments made that interfere with the administration of justice in a pending case, a fact that most state supreme courts simply ignore when handing out Rule 8.2 discipline.) Although the Court claimed its action against Frost is necessary to protect the public, there was no evidence cited by the court that Frost's private comments, which were copied to a member of the Attorney Grievance Commission, had the effect of undermining "public confidence" in the judiciary. In fact, it was the Meng, Bar Counsel and Maryland Court of Appeals, which took the action which made Frost's private commentary public, an action that is certainly much more likely to "undermine public confidence in the judiciary" than Frost's comments.

Make no mistake about it, the the justices on Maryland's highest court were not taking the action they did to protect the public, but were instead acting to protect their colleagues from what they believed to be unfair criticism by Frost. Undoubtedly those judges also know that the Frost case will be a warning shot to let other Maryland attorneys know that if they dare criticize a judge, publicly or privately, they can be targeted for discipline.

Unlike the assumed harmful effect on the public by judicial criticism, the chilling effect on an attorney's free speech rights has a real effect that harms the public. Attorneys are by nature the ones best positioned to act as whistleblowers as to judicial misconduct and when their speech is chilled they instead choose to remain silent. Just recently the Indiana Supreme Court removed Marion County Judge Kim Brown from the bench for numerous counts of misconduct. Undoubtedly attorneys who practiced in her court for years knew about the allegations, but instead chose to remain silent lest they become the next target of the Indiana Disciplinary Commission which by my study, is the most aggressive disciplinary body in the country in terms of pursuing attorneys for discipline for criticizing judges.

Then you have the "Kids for Cash" scandal in Pennsylvania, in which two judges were getting kickbacks in exchange for sentencing kids to a private correctional facility. A commission later found that attorneys in that county knew what was going on but remained silent, which the commission simply assumed was due to a lack of education attorneys had about their responsibility to report unethical judges. What that commission ignored was the more likely reason attorneys remained silent - in three Rule 8.2 cases leading up to that scandal, the Pennsylvania Supreme Court had suspended two attorneys for 5 years and disbarred another one, all for accusing county judges of misconduct.

A Google search of "James Albert Frost" reveals several news reports of extremely bizarre behavior that has resulted in arrests and suggests that the elderly attorney might be having mental health issues. While Frost's removal from the practice of law may well have been advised, the way the Maryland Court of Appeals did it, by using Rule 8.2 to disbar Frost for his private emails, rather than his very public behavior, there is no doubt this case will have very harmful consequences to the Maryland bar and to the public. It will no doubt lay the precedent for future prosecutions of Maryland attorneys for what is actually protected speech under First Amendment precedent, a fact Maryland, like most states, simply ignores while zealously enforcing Rule 8.2 to sanction attorney comments critical of judges.

I would be remiss without including the excellent concurrence/dissent by Justice McDonald who appears to understand the interrelationship between Rule 8.2 and an attorneys' free speech rights, as well as the impropriety of the Bar Counsel using Requests for Admission to "prove" the ultimate facts in a case:

Although the Majority opinion is well thought out and carefully
written, I cannot join it. Our primary purpose in attorney discipline is
to protect the public from inept or errant lawyers, not to protect
public officials from criticism, even if unjustified. I would suspend
Mr. Frost for his failure to respond adequately to Bar Counsel's
inquiry, but am not comfortable disbarring on this limited record for
what appears to be largely an expression of opinion, misguided though
that opinion may be.

Under the Maryland Lawyers' Rules of Professional Conduct ("MLRPC")
8.1(b), an attorney should respond to a lawful inquiry from Bar Counsel,
even if, in the attorney's view, the underlying complaint is frivolous
or any resulting disciplinary action would ultimately prove untenable. Mr. Frost's failure to respond
substantively to Bar Counsel's inquiry thus violated MLRPC 8.1(b). An appropriate sanction would be an indefinite suspension with a
special condition of readmission that he cooperate with Bar Counsel's
inquiry. In addition, the record of this matter documents erratic
behavior by Mr. Frost that raises reasonable questions about his
judgment and competence (in the broadest sense). Given our
responsibility to the public with respect to those we license to serve
it as attorneys, I would also condition Mr. Frost's readmission on the
results of an appropriate medical evaluation. See Maryland Rule 16-760(h)(1).

MLRPC 8.2(a) incorporates in the disciplinary rules a restriction on attorney speech outside the courtroom or a legal proceeding. The alleged violation of MLRPC 8.2(a)
in this case is based on the content of an e-mail that Mr. Frost sent
to his ex-wife and then inexplicably shared with three other lawyers.
MLRPC 8.2(a) prohibits a
lawyer from making a statement concerning the qualifications or
integrity of a judge (or other legal officer) only if the lawyer makes
the statement with knowledge that it is false or with "reckless
disregard" as to its truth. The Restatement of the Law Governing Lawyers
reiterates that standard and elaborates its rationale:

Lawyers are specially situated to assess the official
performance of judges and other judicial and legal officers.
Accordingly, both constitutional law and sound social policy require
that lawyers have broad latitude in criticizing such officers. Under the
rule of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964),
and its progeny, judges and other public legal officers are "public
officials," so that an action by a judge or public legal officer against
a lawyer for damages for defamation would require a showing of actual
malice. Similar considerations should also lead to application of the
standard in New York Times v. Sullivan in lawyer-discipline cases.

The Majority opinion finds that the "knowing or reckless" element is
satisfied in this case as a result of Mr. Frost's failure to participate
in the proceedings below and to respond to requests for admissions. In
other words, he is deemed to have admitted the intent element of the
violation, which, in the view of the Majority opinion, relieves us of
the need to consider the actual content and circumstances of his e-mail,
or the standard by which the statements in question should be judged.
Majority slip op. at pp. 13, 18-19 n.11.

Requests for admissions are typically used to obtain agreement as to
the genuineness of documents, the establishment of other foundational
facts necessary for the admission of evidence, or the truth of
uncontested facts, thereby streamlining the adjudication of a matter. See, e.g.,
P. Niemeyer & L. Schuett, Maryland Rules Commentary 336 (3d ed.
2004) ("Requests for admissions of fact serve a limited but useful
function. . . . The purpose of the rule is . . . to eliminate from trial
those matters over which the parties truly have no dispute"). While I
do not fault Bar Counsel, or any other litigant, for seeking to have an
opposing party concede the entire case through this discovery device,
requests for admission that concern the ultimate issue in a case are
generally not that useful and thus are not enforced. Id.
And when a request on an ultimate issue is "deemed" admitted, it may be
more accurately characterized as a default than a finding or holding on
the particular issue. Thus, the deemed violation of MLRPC 8.2(a)
is largely an echo of the violation of MLRPC 8.1(b) — the failure to
respond adequately to Bar Counsel's inquiry or to participate in the
proceedings below. Perhaps the peculiar facts of this case — or the
unusual way in which the ultimate issue has been determined — limit the
significance of the Court's holding. On the other hand, it may establish
an unfortunate precedent.

I suspect that few lawyers — or judges — have not, at some time,
uttered an unkind and undeserved criticism of a judge, an Attorney
General, a State's Attorney, or a Public Defender. No doubt there have
been occasions where an attorney, in the aftermath of an adverse ruling,
has commented on the parentage of the judge in a way that, even without
the benefit of a "deemed admission," is obviously and literally false,
but is essentially a statement of opinion rather than fact. Perhaps such
remarks are usually made to those who share the sentiment and, unlike
the instant case, do not generate a complaint. But whether there is a
violation of MLRPC 8.2(a) should not depend on the sympathies or sensitivities of the listener. In the end, the rule is aimed at intentional factual misstatements, not rude opinions.

The summary of case law in the Majority opinion is certainly accurate. I add four observations.

First, as the authors of the Restatement noted, civil liability for
criticism of a public official is limited to false statements made with
actual malice — i.e., knowledge of falsity or reckless disregard of falsity. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
In the context of critical remarks about judges, the Supreme Court has
stated that "only those false statements made with the high degree of
awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions." Garrison v. Louisiana, 379 U.S. 64, 74 (1964)
(reversing conviction of district attorney who stated that
"vacation-minded" judges sympathetic to racketeering interests were
responsible for court backlog and impeding vice investigations).

Second, the drafters of MLRPC 8.2(a) intended to incorporate the standards articulated in Garrison and New York Times in that rule. See American Bar Association, Model Rules of Professional Conduct, Proposed Final Draft (May 30, 1981) at 206 ("Rule 8.2 is consistent with that limitation [in New York Times and Garrison]"); M. Tarkington, The Truth be Damned: The First Amendment, Attorney Speech, and Judicial Reputation,
97 Geo. L.J. 1567, 1587 & n. 123 (2009). (As the Majority opinion
recounts, some courts have instead chosen not to apply the New York Times standard in favor of a less demanding, "objective" standard. Majority slip op. at p.19 n.11).

Third, the decisions of this Court under MLRPC 8.2(a)
that are relied upon by the Majority opinion all involved statements
alleging specific acts of misconduct rather than a general negative
characterization of the officials. See Attorney Grievance Comm'n v.McClain, 406 Md. 1, 956 A.2d 135 (2008)
(in appeal to circuit court, attorney alleged that District Court judge
had admitted personal bias against him and purported to "document" that
allegation with false statements about the content of the record); Attorney Grievance Comm'n v. DeMaio, 379 Md. 571, 842 A.2d 802 (2004) (attorney alleged, without factual basis, that judge had ex parte
contact with opposing party, had possibly received a "monetary benefit"
from that party, and had colluded to remove briefs from public record);
Attorney Grievance Comm'n v. Hermina, 379 Md. 503, 842 A.2d 762 (2004) (attorney accused judge of holding ex parte
jury instruction conference with opposing counsel in violation of the
Code of Judicial Conduct). In this case, only the statements concerning
Judge Harrington — i.e., that she allegedly arranged for deputy sheriffs to "illegally" arrest Mr. Frost — appear to go beyond derogatory adjectives.

Finally, discipline imposed by the judiciary that may appear designed
to shield judges from general statements of adverse opinions can itself
undermine confidence in the judiciary. See J. Dodd, The First Amendment and Attorney Discipline for Criticism of the Judiciary: Let the Lawyer Beware, 15 N. Ky. L. Rev. 129, 144 (1988).

At this intersection of statements of fact and statements of opinion,
of protected speech and public officials, it is best to proceed with
caution. I would not impose discipline on the basis of a "deemed
admission" of the critical intent element. Rather, we should hold the
charges under MLRPC 8.2(a)
and 8.4(c) in abeyance. If Mr. Frost were suspended on the basis of the
other charged violations, and were later to satisfy the conditions for
readmission and cooperate with Bar Counsel's inquiry, I would remand the
matter to the hearing judge for further consideration of the remaining
charges. See Maryland Rule 16-759(c)(6). But I would not disbar under MLRPC 8.2(a) and 8.4(c) at this time on this record.

Sunday, March 2, 2014

It's been a long time -- more than 22 years, to be exact -- since Jay Hart, at the time a 19-year-old Frankfort resident, came to Muncie for a day of fun.
Too much fun, as it turned out. After visiting a local skate park, Hart attended a party near the Ball State University campus. His resulting intoxication would end with his arrest at a Muncie skating rink.
The teenager pleaded guilty in Muncie City Court back in 1992 to illegal consumption of alcohol, and over the ensuing decades, his misadventures in Muncie were largely forgotten.
Until Feb. 11, that is. That's the day City Court Judge Dianna Bennington, elected to the bench 20 years after Hart's local prosecution, issued a warrant for his arrest, alleging he had failed to pay a related fine and court costs, then totaling $150, in 1992.
"To walk out to my mailbox and find a warrant for my arrest, it really aggravates me," Hart told The W/R Report last week. "I'm a 41-year-old dad, and I run a business."
Hart maintains he paid his fine and court costs -- in cash -- within a few months of his February 1992 sentencing by then-City Court Judge Linda Ralu Wolf. Nearly 22 years later, however, he hasn't retained any receipt of that payment.
It should be noted Wolf was apparently never informed of that payment. She issued failure-to-pay warrants for Hart's arrest seven times between October 1992 and May 1998. At the time Bennington issued her own warrant last month, no action had been taken in the case for more than 15 years.
Hart maintains that far too much time has passed to expect him to be able to produce proof of his payment -- or to put him at risk of being jailed, on Bennington's warrant, should he be pulled over for a minor traffic infraction.
The normal collection statute of limitations is 10 years. Although there doesn't appear to be a statute of limitations on a court collecting on an unpaid fine, basic principles of due process would suggest that 22 years is too late to be engaging in collection efforts. To expect someone to keep a receipt for more than two decades is not realistic.

I talked to Mr. Hart and am in fact quoted in the article which, unfortunately, is behind a pay wall. Hart said when he called the court, he said he was told by court staffers that they were instructed by the judge to go through old files to try to find fines that were not shown as being paid. The reporter was not able to get confirmation of this practice before reporting what happened to Hart.Unfortunately the local attorneys in Muncie were all afraid of speaking out about what happened to Mr. Hart. While they may fear reprisals in Judge Bennington's court, probably a bigger part of the reluctance is the Disciplinary Commission's aggressive enforcement of Rule 8.2 to charge attorneys who dare to criticize judges. Yet if the Muncie City Court is issuing arrest warrants on decades old fines, it would be an outrageous practice that attorneys should be publicly condemning. Attorneys are natural whistleblowers when it comes to the judicial branch and when they are silenced the public, people like Mr. Hart, pay a price.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.